The Labour Court in the case of Transnet Soc Ltd v NTM obo Molope and Others recently reviewed and set aside an arbitration award that found the dismissal of two employees to be procedurally and substantively unfair, primarily because the disciplinary hearing was held in their absence.
The Court set aside the arbitration award and found that the dismissal was, in fact, procedurally and substantively fair, considering several factors that justified the chairperson’s decision to proceed in the employees’ absence.
Key Factors Considered by the Court
The Court considered the following factors in reaching the above mentioned conclusion:
- The employees had previously submitted medical certificates as a basis for their non-attendance, but the chairperson had already postponed the hearing on several occasions, indicating a reasonable effort from the employer to accommodate the employees.
- The employees had indicated their intention to be dismissed in absentia and had launched an urgent application in the Labour Court to interdict the proceedings, which suggested a deliberate choice not to participate in the hearing.
- The chairperson had a discretion to determine whether sufficient evidence existed to justify proceeding with or postponing the inquiry, and the Court found that the chairperson had properly exercised this discretion, all things considered.
- The charges levelled against the employees were not complex. The employees furthermore did not raise any challenge to the charges, nor did they request further particularity while absent, and the chairperson had provided the annexures in support of the charges to the employees, ensuring they were aware of the incidents referred to in the charge sheet.
- The Court found that the Commissioner tasked with the arbitration had misconstrued the nature of the dispute and failed to properly consider the evidence, particularly the impact of the employees’ actions on the employment relationship when they sent threatening and defamatory emails to management, instead of utilising available grievance procedures.
Takeaway for Employers and Employees
- Employers must be careful to proceed with disciplinary hearings in the absence of employees. Employees have a right to a fair hearing, but this right can be waived expressly or by conduct, such as refusing to attend or giving a clear indication that they are not willing to participate in the hearing. In such circumstances, employers may be justified to proceed in their absence.
- This discretion must be exercised carefully. Employers should ensure that all procedural steps are followed, including providing adequate notice of the hearing, allowing the employee to state their case, and considering any medical certificates or other valid reasons for any absence.